In re Bergen
| Decision Date | 19 May 1900 |
| Citation | 115 F. 339 |
| Parties | In re BERGEN. |
| Court | U.S. District Court — District of Kansas |
J. C Rosenberger, for petitioner.
A. A Godard, Atty. Gen., J. S. West, Asst. Atty. Gen., and E. L Branson, Co. Atty., for respondent.
It appears from the petition of William Bergen for the writ of habeas corpus that he is a citizen and resident of the state of Missouri; that he is in the employ of a firm dealing in intoxicating liquors at wholesale and retail, and having its sole office and place of business in Kansas City, Mo., and that the members of the firm are citizens of that state; that the firm keeps no liquors in the state of Kansas for sale or otherwise; that the petitioner, having been employed by said firm as a traveling salesman, came into the state of Kansas and was here engaged in soliciting orders for the sale of intoxicating liquors, which orders were to be transmitted to his employers, to be accepted or rejected by them, as the case might be; that in the performance of his duties he accepted no money or other thing of value, but was acting solely as a commercial traveler, soliciting orders for transmission to his employers; that he was arrested in Franklin county, Kan., for violating a provision of a state law to which I will hereafter refer, was tried before a justice of the peace, and was convicted, and sentenced to the county jail, where he still remains in the custody of the sheriff. He alleges that his detention is unlawful, in that the provision of the law under which he was prosecuted and convicted is, as applied to his case, violative of the commercial clause of the constitution of the United States. It is also alleged in the petition that the petitioner did not solicit orders from persons who were engaged in the unlawful selling of intoxicating liquors within the state, but only from those who desired liquors for their own consumption. A stipulation signed by the county attorney and by the attorney for the petitioner has been filed, in which it is agreed that the allegations of fact in the petition for the writ of habeas corpus shall be taken as true.
The section of the statute under which the petitioner was convicted, and which is claimed to be unconstitutional as applied to nonresident persons, firms, and corporations and their traveling salesmen, who, within this state, merely solicit orders for intoxicating liquors, is section 12 of chapter 149 of the Session Laws of Kansas of 1885. It is as follows: 'Any person who shall take or receive any order for intoxicating liquors from any person in this state other than a person authorized to sell the same as in this act provided, or any person who shall, directly or indirectly, contract for the sale of any intoxicating liquors with any person in this state other than a person authorized to sell the same, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished therefor as provided in this act for selling intoxicating liquors.'
A printed brief has been presented by counsel for the state in opposition to the discharge of the petitioner, in the opening sentence of which it is said that 'the sole question desired to be raised and decided is as to the constitutionality of' this section of the law. A similar statement appears in the brief for the petitioner. Being thus invited and requested by both parties, it is deemed proper that the court proceed to a consideration of the question of law arising from the stipulated facts set forth in the petition. There are several propositions of law well established by the decisions of the supreme court of the United States which are decisive of the controversy in this case. One of these propositions is that any restriction or limitation imposed by state laws, whether by way of license taxes or otherwise, upon traveling salesmen coming from one state into another for the purpose of soliciting orders for the sale of any commodity which is a proper subject of interstate commerce, is a burden upon interstate commerce and is void, in the absence of permissive legislation by congress. Another proposition is that intoxicating liquors are lawful subjects of interstate commerce. The police power of the state exercised in respect of proper subjects of interstate commerce must yield to the federal constitution. That constitution, and the laws passed in pursuance thereof, are the supreme law of the land. The right to send intoxicating liquors from one state into another pertains to and the act of sending the same is interstate commerce, the regulation whereof has been committed by the constitution of the United States to congress; and a state law which, in the...
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...U.S. 622; Railway v. Sims, 191 U.S. 441; In re White, 43 F. 913, 11 L. R. A. 184; In re Spain, 47 F. 208; Ex parte Loeb, 72 F. 657; In re Bergen, 115 F. 339; Kessler Perilloux, 127 F. 1011; Shoe Co. v. Rubber Co., 156 F. 1; Ex parte Massey [Texas], 92 S.W. 1086; Clements v. Casper, 4 Wyo. 4......
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R. M. Rose Co. v. State
...states means more than the mere transportation of commodities. It comprises as well commercial intercourse in all its phases." In re Bergen (C. C.) 115 F. 339, 342. In American Express Co. v. Iowa, 196 U.S. 133, 25 S.Ct. 182, 184, 49 L.Ed. 417, Mr. Justice White said: "Coming to test the ru......
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State v. Hickox
...was invalid. In the case of In re Bergen, decided May 19, 1900, in the circuit court of the United States for the district of Kansas (115 F. 339), the identical question which we have here determined. Judge Hook, in a carefully prepared opinion, held, under the authorities of the supreme co......
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Moog v. State
...This does not affect the operation of the statute on persons within the state. We are borne out in this conclusion by In re Bergen (C. C.) 115 F. 339; State Hanaphy (Iowa) 90 N.W. 601. The Supreme Court of Kansas seems to have taken a different view, although the point was not really necess......